November 7, 2007

Here's a great case about the intersection of state and federal law. (Via How Appealing.) Gary Ross was fired because he failed a drug test, but he was using marijuana medicinally in California, which has legalized the use of medical marijuana. Marijuana is, nevertheless, banned by the federal Controlled Substance Act, and the U.S. Supreme Court made it clear that the states lack the power to carve out exceptions to that act. So Ross was fired for doing something that is a federal crime, but not a state crime.

Ross is suing his employer, Ragingwire Telecommunications Inc., for discriminating against him for his disability, and he's using state anti-discrimination law. So the question before the California Supreme Court — argued yesterday — is the effect of the medical marijuana law. Does the Compassionate Use Act just mean the state can't criminally prosecute medical marijuana users, or does it mean that private employers can't fire them for using marijuana (and violating federal criminal law)?

The state's voters intended to allow medical marijuana users "to fully participate in life regardless of any potential disability," Stewart Katz, a lawyer for Ross, told the court during Tuesday's hourlong hearing in Sacramento. That includes having a job, he said.

But several justices noted that although Prop. 215 protected medical marijuana users and their caregivers from state criminal prosecution, it never mentioned the workplace.

It's a tough state law question. Did the Californians who voted for the initiative that led to the Compassionate Use Act think about much more than the basic mercy of sparing medical users criminal prosecution? Was there any discussion at the time about imposing new duties on private businesses to accommodate drug users?

An employer who hires a medical marijuana user is "arguably being complicit in an activity that's illegal under federal law," RagingWire's lawyer, Robert Pattison, told the court. He said the state law that requires employers to offer reasonable accommodations to the disabled shouldn't be interpreted to require accommodation of illegal drugs.

I wonder whether, if Ross wins in the California Supreme Court, there is a federal question for the U.S. Supreme Court. Can a state require a private employer to accommodate an individual who is violating federal criminal law?

34 comments:

The man is not an addict. He qualifies for medical marijuana usage under state law because he has a real illness. Is the relevant disability his drug use?

The terminally ill use marijuana to aid digestion, say, while undergoing chemo. Firing a worker because he is using medical marijuana is just another way of firing a terminally ill person whose benefits you would prefer not to pay when he kicks.

I love the double standard, here. If the guy had been smoking tobacco--and were fired for it--this would barely even be a blip in the news feed. But he was smoking marijuana, so it's this HUGE BIG ISSUE ZOMG DRUGS LEGALIZATION JURISDICTION!!

And, of course, the company is going about it the wrong way. You can't discriminate. But you can fail to provide training. Or supplies. Or a comfortable work environment. Or timely promotion, or raises, or meaningful performance reviews. You can assign someone extra work and then berate them for falling behind. You can institute policies that, somehow, seem to crap on them--but it's just policy, not systematic discrimination!

You can do all sorts of nasty things to an employee, just as long as you don't discriminate.

John, not all medical marijuana users are terminally ill. Ross is using marijuana for back pain.

Jimbino: The article says Ross using marijuana in his off hours.

Christy: Good questions. It suggests why there should be a narrow interpretation of the Compassionate Use Act, but it could go toward what counts as "reasonable accommodations" under the anti-discrimination law.

I live in California, and if I recall correctly, this issue came up during the campaign for the proposition. Someone brought up the issue of workplace safety. The response was that there was nothing in the proposition that forced people to employ those who use medical marijuana.

In any case, given that companies are refusing to hire people who smoke tobacco, and getting away with it, I fail to see the issue here.

note: I support medical marijuana and the decriminialization of marijuana.

Well I'm not a lawyer, so I'd appreciate if anyone would like to clarify how the state defines reasonable accommodation of a disability. Buying the guy an ergonomic office chair to ease his back pain seems reasonable. Replacing all of the conference room chairs with ergonomic ones so he can sit wherever he likes would probably be unreasonable. But you have to know the standard of reasonable accommodation to figure out where medical marijuana issue falls.

Somehow I doubt that the voters who enacted the Compassionate Use Act intended to prohibit all companies from doing drug tests, but it's California so who knows.

Drill SGT - In my mind, the employer has a duty to the Feds and to other workers, who clearly can sue the employer IF a drug user is allowed to stay.

want the guy running the machine tool next to you to be high? How about your pilot on your next plane trip, or your doctor?. The cop on the beat?

The problem is that the law, as long as the person's medical condition or medication does not make them unfit to do their job or endanger others - bars employers from discriminating on medical disability..Which butts up against a panoply of "War on Drugs" Fed Laws - which said a person is fine to go with cancer and heavy morphine, perodane, oxycontin, vicodin meds, a range of psychatric anti-depressants, muscle relaxants for back problems....just as long as a doctor prescibes them...except for marijuana and hash which Fed Dogma holds HAS NO MEDICAL USE!! None!

Not like the cocaine I got in the military for a nerve block!

No, siree!

I see it as Fed Disability Law and mandated accomodation of a disabled worker otherwise able to do the job with reasonable accomodation to their medicines, work environment butting up in conflict against Federal "Don't think! Just Say No!" laws.

Guy has a prescription, uses marijuana for pain relief and to help him sleep at night. Does his job.A great case to maybe help resolve old attitudes on "the drugs that are bad because you can't pay a doctor to write a chit for them".

There is a medication, Fampridine, that can help me but its working its way through the FDA approval process and possibly will ready for prescription usage in a year or so. It will be approved when the benefits are weighed against the risks in a scientific manner.

Too bad there aren't millions of people who got high off the stuff when they were in college back in the 60s, 70s and 80s because they would have passed a law just for people like me. Because I'm sure there's no ulterior motive behind this.

Someone who is stoned, or drunk, or sleep-deprived, or whatever, should not be doing lots of things that an employer might require. The employer can assess an employee without doing drug tests by instead evaluating their performance at work. You're not suggesting that because you have a few beers on Sunday afternoon while watching a ball game that an employer should be able to fire you for it if there were a test that could show you drank recently, are you?

What I don't want are employers' violating my privacy by examining my pee without having any reason to suspect I was on drugs on the job, and certainly not (as here - a telecommunications job) when the job's duties do not put others at risk. There are very few situations where I think a piss test is arguably justified.

Also, finding marijuana (a non-addictive, recreational, social drug) in someone's pee only means that they smoked it within the last 45 days, not that they were stoned at work.

An employer who hires a medical marijuana user is "arguably being complicit in an activity that's illegal under federal law,"

I find this arguement to be a stretch.

I also see no meaningful distintion between someone who uses vicodin for back pain vs someone who uses the Evil Weed, whether it's in the workplace or not. Both shouldn't be driving, either. But at a desk job? Gimme a frikkin break.

want the guy running the machine tool next to you to be high? How about your pilot on your next plane trip, or your doctor?. The cop on the beat?

If they were doing random field sobriety checks I would take that arguement into consideration.

Piss tests don't measure impairment. They only show use within 13 days to 6 weeks(rare cases) for pot, as it detects TBN, which is metabolized THC.

But impairment isn't the issue, really. If it truly were, employers would be having their employees blow into a breathalizer, or spit in a chemical that can detect the residue of cocaine and meth, which have a shorter detection window, each time they enter the building, as workplace alcoholism is more commonplace.

In fact, I bet if pot were legal, piss testing would go by the wayside, because it wouldn't be cost effective as detection is easy to avoid when the illicit drugs are only detectable for 2-3 days.

The War on (some) Drugs has devolved into a Pork for Cops and Employers who Toe Our Line program and is bullshit too.

Basically, the law in most states provides that an employer can fire an employee for any reason except for a list of expressly prohibited reasons. Discrimination on various grounds -- race, sex, religion, ethnicity, etc. -- are the usual ones. A disability unrelated to the particular tasks of the job, or an impairment that can be reasonably accommodated to permit the individual to do the job, are also typically prohibited reasons. That sounds like the situation in California.

The comparison to tobacco use is misplaced. Barring some truly wild fact pattern, no one uses tobacco to alleviate a disability. Tobacco smoking is not a prohibited reason, as far as I am aware, in any jurisdiction.

So, this case presents two issues. Does this person suffer a "disability," and if so, must the employer permit the employee to smoke marijuana on the job as a "reasonable accommodation"? Both are issues of state law, but the answer to the second question could create a conflict with federal law.

I don't know whether the plaintiff's back pain qualifies as a "disability." But assuming it does, I don't see how the employer can be forced to allow marijuana use on its premises. Marijuana is a schedule 1 hallucigenic controlled substance (21 USC 812); mere possession is a crime (21 USC 841(D) and 844). Section 881(a)(7) subjects to forfeiture "[a]ll real property ... used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment." Section 881(a)(4) provides for forfeiture of any "aricraft, vehicles or vessels" used to transport a controlled substance. In the past, the Gov't has been quite agressive in using the forefeiture statutes. The law permits an "innocent owner" defense to forfeiture, but generally that requires the owner to prove that it was unaware that its property was being used in connection with a drug crime. To knowingly allow anyone to possess marijuana on the job thus may subject the employer to possible forfeiture penalties by allowing its facilities to be "used" to commit or facilitate a "violation" (e.g., possession). If the plaintiff uses a company car, the car may be subject to forfeiture if the plaintiff carries his marijuana with him.

It is no answer to say that federal prosecutors won't prosecute or seek forfeiture in these circumstances. At best, that is a mere hope, counting on an exercise of prosecutorial discretion in an area where the feds have been disinclined to be flexible. I think the fact that possession is illegal should be enough to decide this case. But I don't see how one can say that the employer must allow the possession of marijuana on its premises (or in its vehicles) as a "reasonable accommodation," given the added fact that the employer is potentially exposed to legal penalties if it does so.

If California nevertheless rules that this is a required "reasonable accommodation," the conflict with federal law with be unavoidable -- California law will then require what federal law prohibits. That would be an excellent reason, standing alone, for the California court to reject such an interpretation of California law.

Sgt T: Unless California has seceded from the Union, the drug isn't "legal in the State of California." Its possession and use just isn't prohibited by California state law (but is by federal law).

If as you say the facts of the case establish that the only marijuana use or possession occurs offsite and never in a company vehicle, then the "reasonable accommodation" aspect of the case is very odd? That usually describes some action that the employer must take so that an impaired individual can perform a job; it usually relates to some affirmative activity at the job site. Here, the employer is not being asked to take any such action -- instead, the only thing the employer is being asked to do is look the other way about illegal offsite conduct.

Nothing says that California can't expand the definition of "reasonable accommodation" to encompass the "act" of looking the other way at an offsite violation of federal law, but such an expansion seems to rob the phrase of any content. To get the protection of California's disability statute, one would only have to link the offsite conduct to something beneficial to one's physical (or perhaps even psychological) needs, possibly with the proviso that those needs be certified by a doctor. I suspect that, for liability averse employers, the effect would be to replace the "at will" doctrine (absent agreement to the contrary, an employee can be fired for any non-prohibited reason) with the opposite -- an employee can only be fired for job-related cause.

That may well be a public policy California decides to adopt. But it seems a stretch to do it under the guise of applying a disability statute.

I can't tell if RagingWire is a federal contractor, but it if it, it must abide by federal anti-drug laws or face going out of business--paying fines along the way. An absolute term of federal contracts is the maintaining of a drug-free workplace.

Sgt T: Unless California has seceded from the Union, the drug isn't "legal in the State of California." Its possession and use just isn't prohibited by California state law (but is by federal law).

It's use IS legal as medicine as far as the State of California is concerned.

Also, your goalpost has shifted. You argued that "I don't see how the employer can be forced to allow marijuana use on its premises." This has nothing to do with him smoking at work. Now you have shifted to reasonable accomidation.

You posit this: "If as you say the facts of the case establish that the only marijuana use or possession occurs offsite and never in a company vehicle, then the "reasonable accommodation" aspect of the case is very odd?"

To which I answer: His prescribed medication, which is legal by State law and prescribed by his physician for a permanent condition(chronic pain), enables him to get sufficient rest at night which allows him to perform his job better during the day. I see that arguement as valid. (They can't show any impairment on the job. They fired him because of what was in his urine.)

But, if denied his medication, he might very well be worse off or under the influence of drugs that are arguably more debilitiating to performance, yet legal under the Federal law.

California employees are "at-will". They could fire him for having a legal drug like alcohol in his system -- he wouldn't have to be impaired. There are all sorts of other drugs that warn the user not to operate machinery, etc. If your job is operating machinery, you can't take those drugs and do the job. If he wants to stay on this particular job he's going to have to quit smoking pot. He'll either have to take something else for the pain, or just suck it up.

An absolute term of federal contracts is the maintaining of a drug-free workplace.

Urinealysis drug testing does little to show actual impairment. The real purpose of the law is to coerce employers into invading the privacy of their employees by forcing them to pee in a jar in order to keep their job and to keep the dollars flowing. "Drug Free" is how they put lipstick on the pig.

Like I wrote above, if the Feds and employers were really interested in on-the-job impairment, they would be using breathalizers, field drug detection kits and field sobriety tests on their workers. But they don't do they?

Piss testing is big business too at about $120 to $140 per jar, whereas a breathalizer is dirt cheap as are saliva tests.

I don't think that it's a question of the employer's having to enforce any laws--state or federal. If the employer chooses to not employ people who use certain drugs, then he has the right to refuse to do so. Just like a restaurant isn't required to employ people who don't fit the image they're trying to present to the public. If I'm not mistaken (big if), it isn't illegal to take drugs, just possess or traffic them without the proper credentials, so his having dope in his system is a moot point.

Alcohol is a legal product, but a taxi cab company would certainly be within its rights to not employ people who insist on using it during the performance of their duties, or who use it just prior to clocking in. I'm no lawyer, so perhaps I've missed the crucial issue here? Wouldn't be the first time.

"Does the Compassionate Use Act just mean the state can't criminally prosecute medical marijuana users, or does it mean that private employers can't fire them for using marijuana (and violating federal criminal law)?"

Yes. Here's a novel concept people - read the god-damned law before getting all spun up as to what should be:

11362.5. (a) This section shall be known and may be cited as the Compassionate Use Act of 1996. b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: (A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. ((B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction. (C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana. (2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes. (c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes. (d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. (e) For the purposes of this section, ''primary caregiver" means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.

________________________________

Clearly then, there is no reference to protection of employment rights under the Compassionate Use Act; had that been intended, the proposition would have clearly spelled that out. It didn't. Ragingwire should win (but will probably lose due to some soon to be discovered penumbra of rights to get high whenever one wishes...).

The man is not an addict. He qualifies for medical marijuana usage under state law because he has a real illness.

John,

For the record, I support drug legalization. That being said, I personally know two people -- and know OF another two -- who went out and got a doctor's recommendation for marijuana to treat "back pain" or "anxiety" or "chronic fatigue" or some other vague medical problem, but who are in fact just potheads.

I know there are people out there somewhere who actually use marijuana to help them through chemo, or help them with glaucoma, or what have you. But based on my personal experience, I have a sneaking suspicion the drug warriors are right and most of the people smoking pot out of "medical necessity" are just looking to get high.

I've no idea if that applies to this guy or not. Since it is impossible to prove that someone DOESN'T have back pain, though, that does make it a perfect excuse.